by Jacob Hornberger, Future of Freedom Foundation

No doubt to the chagrin of many judges across the land, a New Hampshire jury has shown, once again, that juries are the final judges of both the law and the facts in criminal cases, contrary to what all too many judges falsely inform juries in their courtroom.

The New Hampshire case involved the drug war. A man named Bob Constantine was charged with felony possession of marijuana, to wit: growing marijuana plants in his house. Constantine suffers from arthritis, and there was no evidence that he used the marijuana other than simply consuming it himself. Apparently, some nosy neighbor snitched on Constantine to the authorities.

Constantine defended himself at the trial. Before trial, he was offered a plea bargain involving a guilty plea to misdemeanor marijuana possession with 60 days in jail. It would have been a smart move to take the plea, given that Constantine had no defense to the felony charge. However, Constantine knew that this is how the drug war is often played, and he decided not to play the game. He went to trial and rolled the dice, obviously hoping that the jury would engage in some jury nullification.

I don’t know anything about the particular judge in Constantine’s case, but I am familiar with the general attitude that judges have toward jury nullification. They hate it. In fact, they hate it so much that they have come to lying to juries about the power of the jury to judge the law in criminal cases.

Once both sides in a criminal case have provided their evidence to the jury and rested their cases, the judge reads a formal set of instructions known as “the charge” to the jury. In those instructions, the judge sets forth the parameters for the conduct of the jury. For example, he informs the jury that it must presume the defendant innocent and must refuse to convict the defendant unless convinced of his guilt beyond a reasonable doubt.

The judge also tells the jury that it is the sole judge of the facts in the case. The jury decides which of the witnesses are telling the truth and who aren’t. It weighs the evidence and determines guilt or innocence.

The controversy comes with respect to the law itself. Judges tell juries that they do not have the power to judge the rightfulness or wrongfulness of the law that the defendant is being charged with. Or the jury is simply told that it must accept the law as the judge provides it in his charge.

But the judge is lying. The truth is that the jury has the power to judge the law, even if the judge fails to tell the jury of such power. Once the judge hands the case over to the jury, the jury has the power to acquit the defendant for whatever reason it wants, including the fact that the jury finds the law to be immoral or unconscionable, and there isn’t anything the judge can do about it.

Consider, by comparison, a civil suit. After both sides have rested in a civil suit, the judge has the power to enter what is called an “instructed verdict.” He does that if there are no facts in dispute. Since there is nothing for the jury to determine, given that both sides agree on the facts, the judge can dismiss the jury and enter judgment for the side he believes should prevail on the law.

Not so, however, with a criminal case. Even if all the facts are agreed upon — even if the defendant openly confesses on the witness stand to having committed the offense — the judge lacks the power to dismiss the jury and summarily enter judgment for the state. The judge must nonetheless send the case to the jury because the jury is the final judge of not only the facts but also the law. It has the power to acquit the defendant even if the evidence conclusively establishes that the defendant has committed the offense.

That’s what happened in Constantine’s case. To the judge’s credit, he apparently permitted Constantine some latitude in his final summation to the jury, during which he asked the jury to acquit him of the felony charges. One or more members of the jury refused to convict on the felony offense despite the fact that the evidence was undisputed that Constantine was growing marijuana plants in his home. Absent a unanimous verdict, the jury hung on the felony charges. Unfortunately, however, the jury did unanimously vote to convict Constantine of the misdemeanor charge, and the judge sentenced him to the same 60-day jail sentence and $1,000 fine that he would have received with the plea bargain.

According to an article about Constantine’s case by Carla Gericke, president of the New Hampshire Free State Project, entitled “Live Free and Nullify,” the New Hampshire state senate is now considering a bill requiring judges to tell juries the truth regarding their power to nullify and permitting defendants and their attorneys to argue the matter to the jury.

The Constantine case make two valuable points: One, juries have the power to nullify bad laws, regardless of whether or not judges inform them of such power, and, two, at least some jurors are refusing to be willing agents of the cruel and tyrannical war on drugs.

Jacob Hornberger is founder and president of The Future of Freedom Foundation.


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